Documentos de Académico
Documentos de Profesional
Documentos de Cultura
3d 968
BACKGROUND
2
Special agents with the Bureau of Alcohol, Tobacco and Firearms ("ATF")
went to McCollom's trailer home on May 14, 1992, and asked if he possessed
any machine guns manufactured by his brother, Vance McCollom. The agents
did not have a search warrant, and in fact never entered McCollom's home, but
rather engaged in conversation with him on his front porch for approximately
During the course of this two-hour conversation, McCollom first retrieved from
his house a homemade nine millimeter smoothbore machine gun, which he said
his brother had given him sometime prior to Christmas of 1991. One of the
agents testified that McCollom admitted having fired the machine gun in a fully
automatic mode.
The agents then asked McCollom if he was a convicted felon, and he admitted
he was. This information prompted the agents to ask if McCollom had any
more firearms in his house, to which McCollom answered he did and retrieved
from his home eight other firearms, including a sawed-off shotgun without a
serial number, another sawed-off shotgun, a semiautomatic pistol, a .357
Magnum revolver, two .22 caliber revolvers, and two .22 caliber rifles.
McCollom then told the agents he had "forgot something" and went into his
house and came out with a tote bag containing three more homemade machine
guns. The agent testified that McCollom said his brother had brought the bag
over to his house a few months earlier and put it under a bed and that he had
forgotten about it.
The agent further testified that he said that he and his brother both knew that
possession of machine guns was against the law. R.Vol. II at 16. A friend of
McCollom's also testified that McCollom knew that possession of machine guns
was illegal. Id. at 62. The government's Exhibit 1 was a three-page statement
that one of the agents had prepared while he talked to McCollom on his front
porch, each page of which McCollom signed. It included a section stating that
McCollom told the agent that McCollom and his brother knew that possession
of an unregistered machine gun was illegal. Id. at 95. At trial, however,
McCollom consistently denied ever admitting that he knew it was illegal to
possess the machine guns found at his home. No specific testimony was given
as to McCollom's knowledge of the necessity of registering the sawed-off
shotguns, other than his testimony at trial that he did not know it was illegal to
possess those guns.
DISCUSSION
McCollom first argues that his due process rights were violated when he was
convicted for possession of unregistered sawed-off shotguns, because it was
illegal to possess them and he therefore could not have registered them. We
reject this argument.
9It shall be unlawful for any person-10 to receive or possess a firearm which is not registered to him in the National
(d)
Firearms Registration and Transfer Record.
11
26 U.S.C. Sec. 5861(d). This registration requirement has existed since the
enactment of the National Firearms Act Amendments of 1968.
12
There is no dispute that the sawed-off shotguns in question are not registered to
McCollom. McCollom argues he could not have registered the one shotgun
which he testified he found in 1965, because he had not purchased it from a
registered dealer nor from an individual who had registered firearms, and it was
therefore illegal for him to possess it. He says he could not have registered the
other shotgun, which lacked a serial number, because the lack of a serial
number makes it illegal. Illegal weapons are non-registerable, he argues, so it
was impossible for him to comply with the requirements of section 5861(d).
Citing our opinion in United States v. Dalton, 960 F.2d 121 (10th Cir.1992), he
asserts his due process rights were violated by his conviction for possessing
unregistered weapons when he could not register them. We disagree.
13
14
The same argument, based on Dalton, was made in United States v. Tepper,
793 F.Supp. 270 (D.Colo.1992), and the district court correctly rejected it:
15
The distinguishing feature between the short-barreled shotgun in this case and
the machinegun in Dalton is that there is no statutory ban on the registration of
short-barreled shotguns. If the shotgun was made into a short-barreled shotgun
before enactment of the registration requirements in 1968, then its possessor
had to register the weapon within thirty days immediately following the
effective date of the regulation, i.e., November 1968.... After that time,
possession of the unregistered firearm was a crime. If the shotgun was made
into a short-barreled gun after October, 1968, then the gun should not have
been made into a firearm until the maker had filed a written application with
BATF and received a license to do so.... Because the firearm was never
registered with BATF and BATF never granted permission to make the shotgun
into a firearm, any possession or transfer of the weapon violated the NFA.
16
17 if it is unlikely that the firearm would have been accepted for registration, the
Even
defendant has cited no statute which makes the possession of short-barreled shotguns
illegal. Nor has he cited any regulation which would have forbidden the BATF from
registering the shotgun in 1968 or when it was made. Different from Dalton, the
registration of this weapon was not a legal impossibility.
18
Id.; see also United States v. Aiken, 974 F.2d 446 (4th Cir.1992).
19
20
McCollom next argues that his conviction under 5861(d) is in error because he
"was never accused of other crimes" and "was not a criminal and had no
intention of committing a crime." Appellant's Br. at 11, 12. While McCollom's
arguments are vague, we assume he is asserting two points: (1) that the
possession of unregistered weapons alone, without other criminal activity or
charges, cannot form the basis of a section 5861(d) conviction; and (2) that
specific intent must be shown for a violation of section 5861(d).
21
22
We also reject his second argument, that a violation of section 5861(d) requires
specific intent. The government in fact makes a broader argument: that none of
the statutes under which McCollom was convicted are specific intent statutes;
rather, the government need only prove a general intent under each.
23
This court has squarely held in United States v. Staples, 971 F.2d 608 (10th
Cir.1992), cert. granted, --- U.S. ----, 113 S.Ct. 2412, 124 L.Ed.2d 635 (1993),
that specific intent is not required under section 5861(d), at least as it relates to
an unregistered machine gun. See also United States v. Mittleider, 835 F.2d 769
(10th Cir.1987), cert. denied, 485 U.S. 980, 108 S.Ct. 1279, 99 L.Ed.2d 490
(1988). Other courts have also required only a general intent, including when
the firearm at issue is a sawed-off shotgun. See United States v. Reed, 991 F.2d
399, 400 (7th Cir.1993). We further observed in Staples that "knowledge of
registrability" is not a requirement. Staples, 971 F.2d at 615 (citing United
States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971)). The
Supreme Court has granted certiorari in Staples, however, and the possibility
therefore remains that our holding in Staples will be reversed. We therefore
assume, only for the sake of argument, that specific intent is required.
24
The record in this case demonstrates that McCollom specifically knew that it
was illegal to possess machine guns.1 Both the ATF agent and McCollom's
friend, Timothy Harris, testified that McCollom acknowledged awareness of the
illegality of possessing those weapons. Additionally, McCollom signed a
written statement to that effect.
25
With respect to the sawed-off shotguns, there is no dispute that McCollom was
aware that they were indeed sawed-off shotguns. And while there is no
evidence that he was aware of the necessity of registering them, and in fact he
argues he never was aware of that requirement, there is no need for the
government to prove such an awareness. Staples' statement to that effect cited
the Supreme Court's opinion in Freed, in which the Court explicitly held that
the government is not required to prove "specific intent or knowledge that [the
firearms] were unregistered.... [T]he only knowledge required to be proved was
knowledge that the instrument possessed was a firearm." Freed, 401 U.S. at
607, 91 S.Ct. at 1117. The firearm in Freed was a hand grenade, and the Court
observed "one would hardly be surprised to learn that possession of hand
grenades is not an innocent act." Id. at 609, 91 S.Ct. at 1118 (footnote omitted).
We hold that the possession of a sawed-off shotgun similarly "is not an
innocent act" and the possessor may not evade liability by claiming ignorance
of the registration requirement. Thus, regardless of what the Supreme Court
may do in Staples, McCollom's convictions in this case would stand.2
26
Finally, McCollom argues the district court erred in denying him a two-point
reduction for acceptance of responsibility under section 3E1.1 of the Sentencing
Guidelines. Section 3E1.1 permits such a reduction if the defendant clearly
demonstrates acceptance of responsibility.3
27
28
29
Bearing in mind our standard of review, we affirm the district court's denial of a
two-point reduction for acceptance of responsibility. McCollom has clearly
consistently argued that he did nothing illegal and had no unlawful intention,
which conflicts with evidence of his prior statements, and which necessitated
the government's presentation of evidence relating thereto. We affirmed a
similar denial of a reduction in United States v. Vaughn, 7 F.3d 1533 (10th
Cir.1993), where the defendant "admitted that he had purchased a firearm, that
he possessed it on the night of his arrest, and that he had been convicted of a
prior felony. However, inconsistent with an acceptance of responsibility,
[defendant] denied either knowing or being informed that he was prohibited
from possessing a firearm." Id. at 1534 (emphasis added). The district court
committed no error in similarly denying a reduction in this case.
30
30
31
The Honorable Leonard I. Garth, Senior Circuit Judge, United States Court of
Appeals, Third Circuit, sitting by designation
There is no dispute that the guns in question are, in fact, machine guns for
purposes of the statute